THE BORK NOMINATION

THE UNCHARACTERISTIC silence in this space over the past couple of weeks on a hot, controversial topic has been the silence of second thoughts. When Judge Robert H. Bork was nominated to the Supreme Court, we hoped and expected to be able to support his confirmation -- comfortably and unequivocally -- even though his political inclinations are far from our own. Those many aspects of the campaign against him that did not resemble an argument so much as a lynching only reinforced our original instinct. But we find, at the end of a period of total immersion in the subject -- the written record, the testimony for and against Judge Bork and, most tellingly, the testimony by him -- that we cannot.

By now the question may of course be academic; the Bork nomination appears to be gone. The reason for this, we suspect, is not the one being offered by President Reagan's perennially disappointed conservative constituency -- i.e., that the White House failed to campaign for Judge Bork as a Great Avenger of the the Right, a law-and-order man who would roll back the detested tide of permissiveness. Rather it was that Judge Bork's natural and expectable support never materialized in the political middle. There was almost no real or serious resistance in this quarter to the assault from the left against him; there was instead a lot of uncharacteristic silence.

Why? The commonest explanations have been political -- conservative southern Democrats afraid to offend the blacks who have, ironically, become the decisive constituency in the party in that region, moderate northern Republicans likewise fearful for their reelection. But behind these political weak spots has been an abscess of a different kind. On a careful reading of the evidence, a preponderance of powerful reasons to support Judge Bork was fatally undermined by a couple of even more powerful and critical reservations that finally, for us and, we suspect, for many others disposed to support him, could not be overcome.

We are not being playful when we say that much of the anti effort was almost enough to make you pro. It's not just that there has been an intellectual vulgarization and personal savagery to elements of the attack, profoundly distorting the record and the nature of the man. It is also, more important, that the dismal political and programmatic content of some of the argument against him, as heard day after day in the committee hearings, could only confirm a suspicion that the time is ripe for a rigorous challenge to the lazy and dangerous cliches that often pass for policy wisdom and juridical profundity among liberals these days. There was also something disquieting in the idea that intellectual audacity and a challenge to prevailing legal orthodoxy were automatically to be punished or at least put down.

A second factor in Judge Bork's favor was the conventional view to which we continue to subscribe and which has now fallen into such disrepute, namely that a president has a large claim to support in nominating a judge of proven competence and distinction to the court; we think there is something to currently expressed anxieties that the Bork events pave the way to a demagogic, highly politicized future where confirmation proceedings are concerned.

And finally there is the intelligence and professional achievement of the man. On the opposite page today we print a piece by Judge Bork's journalist son, expressing fury and frustration that his father has been so cruelly characterized by those fighting his appointment. Robert Bork Jr. is surely right in protesting that his father is neither a "neanderthal" nor a "racist," nor the rest of that litany, and that the man is far from being the caricature presented. Judge Bork is also, on the evidence, one of the most thoroughly schooled and knowledgeable students of constitutional law ever nominated.

What, then, is enough to overcome all this? The impression, never disturbed throughout the hearing and never refuted by the nominee no matter how many questions just begged for such refutation, that he did not change in the one respect that matters most: Judge Bork has retained from his academic days an almost frightening detachment from, not to say indifference toward, the real-world consequences of his views; he plays with ideas, seeks tidiness, and in the process does not seem to care who is crushed.

What people like ourselves needed when confronted with this impression was modest, but critical. It was not evidence that Robert Bork is a political liberal or in fact a political anything, and it was not evidence that he would have approved of everything the Supreme Court has done on matters of race, other forms of discrimination, privacy, free speech or other such issues in recent years, or that he would be swayed by emotion. Rather it was a simple assurance that, in addition to the forensic brilliance, the personal integrity and the care for the law, Robert Bork's moral sensibility could be engaged with the questions on which he had pronounced so forcefully, that in these great cases that were to have so profound and intimate an effect on people's lives, he had a feeling for justice, not just for the law. They are not always the same.

This was an assurance of which we could find only the palest traces in the copious written record, and one Judge Bork either could not or would not provide in the course of his prolonged interrogation. He had a hundred opportunities, and he never did it. Instead all the talk was in the opposite direction.

Judge Bork is driven by the idea that the judiciary in recent years has substituted values -- inevitably its own -- for the law, and in the process is dissipating its authority, threatening its legitimacy. And the excruciating thing about his nomination is that, to some considerable extent, he is right in this. He has been pilloried in part for having had the effrontery to raise questions that ought to be raised and that are difficult to answer, about the nature of the constitutional provisions and the statutes the courts are called upon to construe, and about the proper role of the courts in doing so. It is not as clear as advocates would wish -- often as we would wish -- that the Constitution bars all forms of sex discrimination; requires one-man, one-vote; bars any form of state aid to sectarian schools; creates a clear shield of privacy. And so to some extent Judge Bork is being skewered for having rightly said so.

His saying these things is not our objection to his nomination, however. We go the next step, to what he has not said. The genius that has allowed the Constitution to survive for 200 years lies partly in its elasticity. Many of the nation's clearest and ugliest inequities -- racial discrimination and chronic malapportionment among them -- have been mitigated only because judges used that elasticity to deal with issues that, for various reasons, the other branches would not. Judge Bork, it seems to us, is much more likely to note injustice but refuse to use the full powers of the Supreme Court to remedy it. He does not read the Constitution generously.

If the answers to the most important judicial questions were easy, if judges did not, in answering them, have enormous discretion, there would be no problem here. But they do have great discretion; they must apply values, because they are confronted daily with the need to make value judgments at points where the written law provides no absolute guide. Judge Bork in his zeal to move away from values does not take us to a value-free zone, much as he might like to. He takes us to a place where the courts too often say no. Those results are expressions of value, too. He may go in a healthy direction, but he goes too fa